Texas Steel Co. v. Douglas, No. 17683

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: BREWSTER
• Citation: 533 S.W.2d 111
• Parties: TEXAS STEEL COMPANY, Appellant, v. Edward DOUGLAS, Appellee.
• Decision Date: 23 January 1976
• Docket Number: No. 17683

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533 S.W.2d 111 TEXAS STEEL COMPANY, Appellant,
v.
Edward DOUGLAS, Appellee. No. 17683. Court of Civil Appeals of Texas,
Fort Worth. Jan. 23, 1976.
Rehearing Denied Feb. 20, 1976.

Mueller & Mueller, and Denning Schattman, Fort Worth, for appellant.

Laurance L. Priddy, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

The plaintiff, Edward Douglas, sued Texas Steel Company, defendant, for damages that allegedly resulted to plaintiff, who was defendant's employee, as a result of defendant firing plaintiff for instituting a proceeding under the Texas Workmen's Compensation Law.

A jury trial was not and based on the jury verdict the trial court rendered a $2,500.00 judgment for damages in favor of plaintiff and against defendant and this appeal is made by defendant from that decree.

We affirm.

Plaintiff's position was that the cause of action sued on arose under the provisions of Art. 8307c, T.A.T.S., which provides:

'Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, Instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen's Compensation Act, or has testified or is about to testify in any such proceeding.

'Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation . . .' (Emphasis supplied.)

The jury found that (1) plaintiff was terminated by defendant because he instituted a proceeding under the Workmen's Compensation Law; (2) and (3) that the reasonable value of wages plaintiff lost to trial time as a direct result of his firing was $1,500; (4) that he will suffer a loss of earnings in the future as a result of the firing; and (5) that the reasonable value of the future loss of wages was $1,000.00.

Defendant's first point of error is that the trial court erred in overruling its motion for a directed verdict. Its second point of error is that the trial court erred in overruling its motion for judgment non obstante veredicto. It advances five different reasons why it says those two rulings are erroneous, such reasons being: (a) there is no evidence to support the submission of any issues to the jury; (b) there is no evidence to support an affirmative answer to issues 1, 2 and 4 or a finding of money damages to issues 3 and 5; (c) there is insufficient evidence to support the submission of any issue to the jury; (d) there is insufficient evidence to support an affirmative answer to issues 1, 2 and 4 or a finding of money damages to issues 3 and 5; and (e) the plaintiff failed to exercise reasonable diligence to mitigate losses.

The assignment in defendant's amended motion for new trial on which its first point of error is based shows that the motion for instructed verdict that defendant

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has reference to in its first point of error was made at the close of plaintiff's case. The statement of facts shows the same thing. That motion for a directed verdict was dictated to the court reporter at the time plaintiff rested its case. When the trial court stated that he overruled the motion for a directed verdict, defense counsel then proceeded to put on the defendant's evidence. He thereafter put several witnesses on the stand before resting. When both sides rested their cases the defendant did not reurge its motion for a directed verdict. Under that set of facts the defendant waived its motion for an instructed verdict.

The law is well settled that a defendant by electing not to stand on its motion for an instructed verdict made after the plaintiff had introduced its evidence and rested its case, and by proceeding with the introduction of its own evidence, waives its motion for an instructed verdict. Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Waco, Tex.Civ.App., 1966, ref., n.r.e.) and Barrett v. Curtis, 407 S.W.2d 359 (Dallas, Tex.Civ.App., 1966, no writ hist.).

For this reason alone we are required to and do overrule defendant's first point of error.

We are in agreement with the defendant's contention that no evidence of probative force was offered to show that the plaintiff, Douglas, filed a formal claim for compensation with the Industrial Accident Board, prior to the time the employer discharged the plaintiff in this case.

The defendant's argument under the points referred to appears to be largely based on its contention that in order for the plaintiff employee to make out a case under Art. 8307c, it was necessary for him to prove that the employee had filed a claim for Workmen's Compensation insurance with the Board, that the employer had knowledge of that fact, and that because the employee had filed such claim the employer had fired the employee. Defendant argues that because there is no evidence and insufficient evidence to establish the facts referred to that there is no evidence and insufficient evidence to support the jury's affirmative answers to issues 1, 2 and 4.

We do not agree with defendant's contention that it was necessary in this case before plaintiff could make out a case under the particular part of Art. 8307c that is involved here that plaintiff had to prove that he had filed a claim for compensation, that defendant know about it, and that because the employee had filed such claim the employer fired him.

The plaintiff's case was pitched on the theory that the employer fired him because he had instituted a 'proceeding under the Workmen's Compensation Law.' That is the way the case was pleaded and that is the issue that was submitted to the jury.

The undisputed evidence in the case showed that: on March 8, 1973, the plaintiff sustained an on-the-job injury while working for defendant; that on March 12, 1973, he went to the first aid station to report his injury and to get treatment for it; he was sent to two different doctors for examination and treatment and he there received treatment of his on-the-job back injury; his employer's superintendent, Pender, received notice of his injury shortly after plaintiff went to the first aid station; and the insurance carrier thereafter paid the plaintiff two or more weeks of Workmen's Compensation insurance at the rate of...